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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to the
award of Arbitrator Justin C. Smith. The Arbitrator sustained a grievance which
claimed lost overtime for employees who were required to work outside their
normally scheduled hours.

The Agency filed exceptions to the award under section
7122(a) of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition to the exceptions.

For the following reasons, we find that the award is not
contrary to law, rule, or regulation, and that the Agency failed to demonstrate
that the award is based on a nonfact. Accordingly, we deny the
exceptions.

II. Background and Arbitrator's Award

Noting that the parties were not in agreement as to the
issue before the Arbitrator, the Arbitrator framed the issue in dispute as
follows:

Did the Activity violate the national and local
agreements by requiring the grievants to work outside the normally scheduled
hours without paying them overtime?

Award at 1.

The eight grievants are motor vehicle operators who
transport patients to and from various appointments and activities. From
October 1985, to October 1987, changes were instituted in the employees' work
schedules. One change, according to the Arbitrator, "resulted in an eight hour
day being split into two segments for some Motor Vehicle Operators, or their
services were not required at the start of their work day and were required to
report back later to cover evening assignments." Award at 1. The Arbitrator
noted the Agency's claims that: (1) this change was designed to maximize the
efficiency of the work force; and (2) in many instances work schedules could
not be prepared in advance because last-minute donations of tickets to various
activities necessitated the services of motor vehicle operators to transport
patients to and from those activities.

Another change in the employees' work schedules involved
a shift in the workweek from Monday through Friday to Tuesday through Saturday.
The Arbitrator noted the Union's claim that following the institution of this
change, which could result in employees working split shifts, the employees
received virtually no overtime, in contrast to other employees performing
different duties who received overtime when they were required to work on
weekends.

The Arbitrator examined the overtime provisions of the
master and local agreements and the workweek provision in the local agreement.
He found that the agreements "contemplate both regular tours of duty and that
overtime shall be payable either when an employee is obligated to work more
than 40 hours in a scheduled workweek or to work hours outside his normal daily
tour of duty, such as being released and called back to work the same day."
Id. at 4. The Arbitrator also found that regular split shifts could not
be scheduled unless an employee requested split shifts and, further, that
employees were assured "some regularity" in their daily tours of duty, except
in cases of emergency, by a contractual posting requirement. Id. The
Arbitrator questioned whether the Agency could, "on a more or less regular
basis, schedule split shifts on the claim that an emergency exists?" Id.
He then stated that "[a] review of the facts . . . would scarcely suggest that
a true emergency existed every time one of the grievants was asked to work a
split shift." Id. at 5.

The Arbitrator concluded that the grievants had received
disparate treatment as compared with other employees in the scheduling of work
and he sustained the grievance. The Arbitrator, however, rejected an assertion
by the Union that the Agency's conduct in making the scheduling changes had
been racially motivated.

As the remedy, the Arbitrator directed the parties to
negotiate "a monetary settlement covering the lost overtime insofar as it is
possible under applicable federal laws and regulations." Id. The
Arbitrator retained jurisdiction for the purpose of interpretation or
implementation of the award.

III. Positions of the Parties

A. Agency's Exceptions

The Agency requests a stay of the Arbitrator's award and
claims that the award is deficient because it is: (1) based on a nonfact; and
(2) inconsistent with various laws and regulations.

1. Nonfact

The Agency claims that the Arbitrator based his award on
erroneous findings that: (1) the grievants worked a split shift or were asked
to remain on standby during the workday; (2) the tour of duty was split because
of a perceived emergency by Agency management; and (3) employees were due pay
for overtime. Exceptions at 5-7.

First, the Agency argues that no employee was required to
work a split shift. The Agency states that once or twice a month, employees
were asked to work from 3:30 p.m. to 12:00 a.m., instead of their regular 8:00
a.m. to 4:30 p.m. tour of duty. The Agency maintains, however, that both the
regular and the changed shifts were consecutive 8-hour tours of
duty.

Second, the Agency asserts that it "has not claimed that
the necessity for the operators to work the disputed tour of duty is dictated
by emergency needs of the [Agency]." Id. at 7. The Agency claims that it
scheduled the employees' tours of duty in advance and notified them of any
changes in advance of the 7-day notice required by regulation.

Finally, the Agency claims that the Arbitrator's award of
backpay was based on a "central finding" that the employees were entitled to
overtime. Id. The Agency states that when the employees worked a
different shift, it was in lieu of--not in addition to--their regular tour of
duty, and that the employees did not work more than a regular 40-hour week. The
Agency asserts that nothing in the parties' agreements requires overtime pay
when employees work different hours.

2. Laws and Regulations

The Agency's second exception is that the award is
inconsistent with Federal laws and regulations concerning the scheduling of
workweeks and work schedules. The Agency claims that it is obligated by 5
U.S.C. § 6101(a)(2)(A) and 5 C.F.R. §§ 610.111 and 610.121 to
(1) schedule work in order to accomplish the mission of the Agency, and (2)
schedule an employee's regularly scheduled administrative workweek so that it
corresponds with the actual work requirements when the Agency head knows in
advance of the administrative workweek that a change in schedule is necessary.
In support of its position, the Agency cites Department of Defense,
Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort
Bragg, North Carolina, 20 FLRA 811 (1985) (Fort Bragg).

The Agency states that the employees' work schedules were
changed to comport with the hours when their services were required. The Agency
argues that the Arbitrator's award "carries the implication that the [Agency]
may not reschedule employees' tours of duty to conform with its work
requirements, unless overtime is paid regardless of whether a basic [40-hour]
workweek is performed." Exceptions at 9.

The Agency also claims that the award is inconsistent
with Federal Personnel Manual (FPM), Chapter 550, subchapter 1-3. According to
the Agency, it is obligated to pay overtime under that authority when employees
work in excess of 40 hours in an administrative workweek. The Agency argues
that the motor vehicle operators did not work in excess of 40 hours and,
therefore, there is no entitlement to overtime compensation under the
provisions of the FPM.

In further support of its claim that the award violates
law, the Agency argues that the award is contrary to the decision of the United
States Claims Court in Presser v. United States, 15 Cl. Ct. 672 (1988)
(Presser). The Agency contends that in Presser, the court held
that an employee is entitled to overtime only when (1) the employee works in
excess of 40 hours, or (2) the employee is given insufficient notice of the
requirement to work a different shift. The Agency argues that neither of those
conditions existed here. The Agency contends that consistent with
Presser, the grievants were not entitled to overtime.

The Agency further claims that the award is contrary to
the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, an award of
backpay must be based on a finding that a personnel action violated a statute
or regulation. The Agency states that because there has been no such showing in
this case, the award of backpay is deficient.

B. Union's Opposition

The Union asserts that the Arbitrator's award is not
based on a nonfact. The Union argues that there was a factual basis for the
Arbitrator's ruling that employees sometimes worked split shifts. The Union
also claims that the Arbitrator's award was based on a determination that the
grievants worked outside their regularly scheduled tours of duty and that the
award was not dependent on the finding that employees worked split shifts.

The Union also asserts that the award is not inconsistent
with Federal law and regulation concerning the scheduling of overtime and the
establishment of administrative workweeks. The Union states that the Arbitrator
appropriately determined that the Agency was not justified in changing the
employees' tour of duty under the parties' agreements and, further, that the
Arbitrator's award is consistent with the Authority's decision in National
Association of Government Employees, Local R7-23 and Department of the Air
Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986) (Scott Air
Force Base). The Union argues that the Agency's reliance on Presser
is misplaced because the facts in this case are distinguishable from the facts
in Presser.

Finally, the Union claims that the Arbitrator correctly
ordered a monetary settlement based on the Agency's improper change in the
employees' shifts. The Union states that "[t]he employees would have received
overtime for the evening hours that they worked but for the agency's improper
action in rescheduling their hours." Opposition at 8. Moreover, to the extent
that the Arbitrator ordered the parties to negotiate a settlement under
applicable laws and regulations, the Union acknowledges that whatever
settlement is agreed to "will be cognizant of the requirements of federal law
regarding advance scheduling of employees." Id. at 9.

IV. Analysis and Conclusions

For the following reasons, we conclude that the Agency
has not established that the Arbitrator's award is deficient because it is
based on a nonfact or because it is contrary to any law, rule, or
regulation.

A. The Award is Not Based on a Nonfact

We will find an award deficient on the ground that it is
based on a nonfact when it is demonstrated that the central fact underlying the
award is clearly erroneous, but for which a different result would have been
reached. See, for example, Department of the Navy, Naval
Surface Warfare Center, Dahlgren, Virginia and American Federation of
Government Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an
award to be found deficient on this ground, it must be established that the
alleged "nonfact" was the central fact underlying the award, was erroneous, and
that but for the arbitrator's erroneous finding, the arbitrator would have
reached a different result. Id.

In this case, the Agency offers three arguments to
support its claim that the Arbitrator's award is based on a nonfact. First, the
Agency contends that the Arbitrator based his award on a finding that employees
worked a split shift or were asked to remain on standby during the work- day.
Second, the Agency argues that the Arbitrator erroneously presumed that the
tour of duty was split because of a perceived emergency by Agency management.
Finally, the Agency claims that the Arbitrator based his award on an erroneous
finding that the employees were entitled to overtime.

As to the Agency's first argument, we conclude that the
Agency has failed to demonstrate that the Arbitrator's finding that employees
worked split shifts, even if clearly erroneous, was the central fact on which
he based his award. We reach this result in light of the Arbitrator's
formulation of the issue, the agreement provisions on which he relied, and a
reading of the award in its entirety.

It is well-settled that an arbitrator may frame the issue
in dispute when the parties have failed to do so or where, as here, the parties
were not in agreement as to the issue. See, forexample,
U.S. Immigration and Naturalization Service and American Federation of
Government Employees, Local 917, 34 FLRA 342 (1990). The Arbitrator framed
the issue before him as whether there was a violation of the parties'
agreements "by requiring the grievants to work outside the normally scheduled
hours without paying them overtime[]." Award at 1. The Arbitrator concluded
that the Agency had required employees to work outside their regularly
scheduled tour of duty.

In reaching his conclusion, the Arbitrator examined the
provisions of the parties' master and local agreements concerning overtime and
workweeks. The Arbitrator found that the provisions "contemplate both regular
tours of duty and that overtime shall be payable either when an employee is
obligated to work more than 40 hours in a scheduled workweek or to work hours
outside his normal daily tour of duty, such as being released and called back
to work the same day." Id. at 4. One of the provisions cited by the
Arbitrator, Section 4 of Article 39 of the local agreement, states that
"[i]nsofar as it is administratively possible, the work hours in each day of
the basic workweek will be the same." Id. The Arbitrator also referenced
other provisions of the agreements and found that "'[r]egular scheduled split
shifts will not be scheduled in a basic workday unless an employee requests
it[,]'" and that "an employee [is assured] some regularity in terms of his
daily tour of duty through a posting requirement except in the case of an
emergency." Id.

Contrary to the Agency's contentions, the Arbitrator did
not rely solely on a finding that employees worked a split shift. Instead, he
found that the agreements contemplated regular tours of duty and assured
employees regularity in their daily tour of duty. Although the Agency argues
that employees did not work a split shift, the Agency does not controvert the
Arbitrator's additional findings concerning regularity in employees' tours of
duty. Moreover, the Agency accepted the Arbitrator's formulation of the issue,
and concedes that the tour of duty for motor vehicle operators was
changed.

In these circumstances, we are unable to conclude that
the central fact underlying the Arbitrator's award was the Arbitrator's finding
that employees worked a split shift. Consequently, even if that finding were
clearly erroneous, the Agency has not established that the Arbitrator's award
is deficient.

The Agency's second argument is that the Arbitrator
erroneously attributed the Agency's conduct in splitting shifts to a perceived
emergency by Agency management. Exceptions at 5-6. The Arbitrator's finding
with regard to emergency scheduling related to a local agreement provision
which, according to the Arbitrator, assured employees regularity in their daily
tours of duty, except in cases of emergency. In describing the limited
exception to the scheduling of regular tours of duty based on emergency
situations, the Arbitrator outlined the types of occurrences which could give
rise to an emergency. The Arbitrator noted, for example, that emergencies
involve situations that are not predictable, cannot be avoided by adequate
staffing, and call for quick action. Award at 5. The Arbitrator found that
these factors were not present each time the Agency sought to act under the
limited exception to the scheduling of regular tours of duty.

In our view, the Agency has failed to establish that the
Arbitrator's finding as to emergency scheduling, even if clearly erroneous, was
the central fact underlying the award but for which a different result would
have been reached. Rather, the Agency is expressing disagreement with the
Arbitrator's interpretation and application of an agreement provision relating
to permissible scheduling on an emergency basis and, also, to his factual
findings. The Agency's argument provides no basis for finding the award
deficient. See, for example, U.S. Department of
Transportation, Maritime Administration, James River Reserve Fleet and National
Association of Government Employees, Local R4-7, 35 FLRA 1213
(1990).

The Agency's remaining contention is that the
Arbitrator's award of backpay was based on an erroneous finding that employees
were entitled to overtime and, therefore, was based on a nonfact. We find that
the thrust of this argument is that the award of overtime is contrary to law
and regulation, not that it is based on a nonfact. As set forth more fully
below, we conclude that the award of overtime is not inconsistent with law and
regulation.

In sum, we conclude that the Agency has not established
that the Arbitrator's award is deficient because it was based on a
nonfact.

B. The Award is Consistent with Law and
Regulation

We will examine separately each of the Agency's
contentions that the award violates law and regulation.

1. The award is consistent with 5 U.S.C. § 6101
and its implementing regulations

The Agency's central argument rests on 5 C.F.R. § 610.121(b) which, in relevant part, provides as follows: (1)
§ 610.121(b)(1) provides that the head of an agency is obligated to schedule the
work of employees and their regularly scheduled administrative workweeks in
order to accomplish the agency's mission and to correspond with the employees'
actual work requirements; and (2) § 610.121(b)(2) requires an agency head
to reschedule an employee's regularly scheduled workweek when the agency head
knows in advance of the administrative workweek that the specific days and/or
hours of a day actually required of the employee in that administrative
workweek will differ from the days and/or hours required in the current
administrative workweek.

As the Authority held in Scott Air Force Base, 23
FLRA 753, 754-756, section 610.121(b) must be interpreted in a manner
consistent with 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121(a).
Those provisions permit an agency head to make changes in an employee's
established workweek only when it is determined by the agency head that the
agency would be seriously handicapped in carrying out its functions or that
costs would be substantially increased.

The Agency has not claimed, or otherwise demonstrated,
that it changed the work schedules of motor vehicle operators in order to
prevent serious handicapping of the Agency's functions or to prevent
substantially increased costs. The Agency states only that transporting
patients on recreational outings furthers its mission and that budgetary
limitations preclude regularly scheduled overtime. Moreover, the Agency has not
shown in what manner the award violates the legal and regulatory requirements
governing changes in work schedules. The Agency merely states that the award
"carries the implication that the [Agency] may not reschedule employees' tours
of duty to conform with its work requirements, unless overtime is paid
regardless of whether a basic forty hour workweek is performed." Exceptions at
9. We find nothing in the award which would prevent the Agency from changing
work schedules, as long as such changes were made in accordance with law and
regulation.

Finally, the Agency's reliance on Fort Bragg is in
error. In Scott Air Force Base, the Authority stated that it would no
longer follow prior decisions interpreting 5 C.F.R. § 610.121(b).
Id. at 756. In an appendix to its decision, the Authority listed Fort
Bragg as one of the cases it would no longer follow.

The Agency has not established that the award violates 5
U.S.C. § 6101 or its implementing regulations. We conclude, therefore,
that this exception provides no basis for finding the award
deficient.

2. The award is not contrary to a Claims Court
Decision

In Presser, the employee worked as a relief
operator on one of three daily shifts, as needed, and was not assigned to a
regularly scheduled 40-hour workweek. The employee's work schedule, instead,
was established in accordance with 5 U.S.C. § 6101 and 5 C.F.R. § 610.111(b), which allow an agency, under prescribed conditions, to establish
the first 40 hours of duty performed within an administrative workweek as the
basic workweek. The Claims Court rejected the employee's assertion that he was
entitled to overtime compensation for the hours of work performed outside of
what he viewed to be his regularly scheduled workweek. The court found that for
an employee whose workweek is determined in accordance with 5 C.F.R. § 610.111(b), there is an entitlement to overtime only when the employee works in
excess of 40 hours in an administrative workweek, or is given insufficient
notice of a scheduling of shifts.

The employees here are not subject to workweeks which are
established under 5 C.F.R. § 610.111(b). Rather, they are assigned to
regularly scheduled workweeks with the hours of 8:00 a.m. to 4:30 p.m.
Exceptions at 8. As they are assigned to regularly scheduled 40-hour workweeks,
decisions concerning overtime entitlement under 5 C.F.R. § 610.111(b),
including Presser, are not applicable. Accordingly, the Agency's
exception that the Arbitrator's award is inconsistent with the decision in
Presser provides no basis for finding the award deficient.

3. The award is not contrary to the Back Pay
Act

For an award of backpay to be authorized under the Back
Pay Act, the arbitrator must determine that the aggrieved employee was affected
by an unjustified or unwarranted personnel action, that the personnel action
directly resulted in the withdrawal or reduction of the grievant's pay,
allowances or differentials, and that but for such action, the grievant
otherwise would not have suffered the withdrawal or reduction. SeeU.S. Department of Agriculture, Forest Service and National Federation of
Federal Employees, Local 450, 35 FLRA 542, 548 (1990).

An agency's failure to abide by the terms of a collective
bargaining agreement constitutes an unwarranted personnel action under the Back
Pay Act. Id. Similarly, a failure to pay employees monies to which they
were entitled constitutes an unwarranted personnel action within the meaning of
the Back Pay Act. SeeVeterans Administration Medical Center,
Leavenworth, Kansas and American Federation of Government Employees, Local
85, 24 FLRA 902, 904 (1986).

As noted above, the Agency's sole claim that the award
violates the Back Pay Act is that there has been no unwarranted personnel
action in this case. The Arbitrator found, however, that the Agency violated
the terms of the parties' collective bargaining agreements. This finding
satisfies the requirement that an award of backpay be based on an unjustified
or unwarranted personnel action. Consequently, we reject the Agency's assertion
that the award violates the Back Pay Act.

4. The award of overtime is not contrary to the
FPM

The Agency argues that the award conflicts with FPM
Chapter 550, subchapter 1-3, which provides, in part, that overtime is payable
to employees working in excess of 40 hours in an administrative workweek. The
Agency claims that the employees are not entitled to overtime compensation
because the employees did not work more than 40 hours in a workweek. We do not
agree.

The Authority previously has found awards of overtime
compensation to be warranted in cases where employees did not actually perform
overtime work. See, U.S. Army Aberdeen Proving Ground, Installation
Support Activity and National Federation of Federal Employees, Local 2058,
28 FLRA 566 (1987); Department of the Treasury, U.S. Customs Service and
National Treasury Employees Union, 13 FLRA 386 (1983); and Bureau of
Alcohol, Tobacco, and Firearms and National Treasury Employees Union, 12
FLRA 49 (1983). In each of these cases, the fact that employees did not
actually work overtime did not render a remedy of overtime compensation
unlawful because the employees would have worked overtime had the agency not
engaged in improper conduct and, therefore, they suffered the loss of pay
because of that conduct. On the other hand, in cases where it was not
established that employees would have worked any overtime or that their loss of
pay directly resulted from an agency's unlawful conduct, an award of backpay is
not appropriate. See, for example, Navy Public Works Center
Norfolk, Virginia and Tidewater Virginia Federal Employees Metal Trades
Council, 33 FLRA 592 (1988); U.S. Department of Labor, OIPA and American
Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA 368 (1987);
and, Jefferson Barracks National Cemetery, St. Louis, Missouri and National
Association of Government Employees, Local R14-116, 13 FLRA 703
(1984).

In this case, the Arbitrator found that employees were
entitled to overtime compensation under the master and local agreements, that
employees lost overtime, and that the Agency violated the master and local
agreements by failing to make overtime payments. In directing that employees be
given "a monetary payment for the lost overtime" the Arbitrator ordered the
parties to negotiate "insofar as it is possible under applicable federal laws
and regulations." Award at 5. Because the award, by its terms, requires the
parties to negotiate overtime payment in accordance with applicable laws and
regulations, and in light of the Arbitrator's finding that employees improperly
lost overtime, the Agency's assertion that the award conflicts with provisions
of the FPM cannot be sustained.

1. During the pendency of this case the Veterans
Administration was reestablished as the Department of Veterans Affairs.

2. The Agency requested a stay
of the Arbitrator's award when it filed its exceptions with the Authority on
January 23, 1989. Effective December 31, 1986, the Authority's Rules and
Regulations were revised to revoke those portions pertaining to the filing of
requests for stays of arbitration awards. 51 Fed. Reg. 45754. Accordingly, no
action on the stay request was taken.